My comments on ASADA/SIA responses to FOI requests are predicated on my understanding that a key objective of FOI requests is to assist transparency and improve public confidence in government-decision-making.
The overwhelming majority of FOI requests are made because applicants do not trust the veracity of government and agency decisions. It is axiomatic that the longer it takes to release documents, and the greater number of redactions, the more convinced the FOI applicant believes the truth is being hidden.
The lives of 34 Essendon AFL players were severely damaged by ASADA/SIA’s misrepresentations and refusal to release key documents.
Although, I made over 20 FOI requests, I have only referred to a few in this submission to highlight the poor governance by ASADA/SIA with respect to FOI requests.
Occasionally, when ASADA has stone-walled my FOI requests, I have been able to source the same documents from some players and lawyers. These documents have provided irrefutable proof of ASADA’s abuse of time extension delays and unsupportable redactions.
ASADA’s case against the 34 Essendon players was predicated on the misrepresentation of the facts by ASADA at the Anti-Doping Review Violation Panel (ADRVP) ASADA meeting on 3 November 2014.
Res ipsa loquitur, un-redacted documents belatedly proved that ASADA misrepresented the case against the players. If the main case documents ASADA made against the players had been made available when requested, they may have been able to overturn the soul-destroying guilty decision.
It is essential that ANAO addresses a major governance problem under the current FOI Act, where it is impossible for applicants to challenge and judge the veracity of redactions because he/she is not allowed to see the content of the redactions. Scores and scores of entire pages were redacted by both ASADA and SIA in response to my requests, which made it impossible for me to assess, without seeing the page, whether s38 and s45 of the ASADA/SIA acts were correctly applied. As an example, at Clause 210 on pages 95 and 96 of the CEO Recommendation Show Cause Pack, every word but the word ‘THAT’ was redacted. I don’t accept that in just over a page, only one word wasn’t confidential information of a player.
To obtain time extensions, ASADA and SIA executives used the need to contact third parties. I made an FOI request on 22 June 2016 (FOI 16:15). ASADA sought, and obtained, and missed many time extensions over the following five years to consult with third parties, including the 34 Essendon players. My Administrative Appeals Tribunal (AAT 2020/6399 hearing with ASADA took place 6-7 December 2021. A decision by the AAT was made in June 2024. Cross examination of the ASADA witness at the hearing proved that no legitimate third party was approached by ASADA and SIA for approval to release the documents.
I sought redactions in 450 pages to be un-redacted. Unbelievably, the AAT Deputy President, who was a Queens Counsel, didn’t find a single sentence or even a single word that was redacted incorrectly. Clearly, this was a major governance problem.
Players were told that if they didn’t tell the truth or withheld information during their interviews with ASADA, they could face a two-year gaol sentence. ASADA and SIA executives making similar mistakes escaped without penalty. Clearly, this is a major governance problem that needs urgent addressing.
Shortage of staff was often offered an excuse by ASADA and SIA for continual extensions of time to comply with FOI requests. It is incomprehensible that ASADA/SIA doesn’t have an FOI department in the agency.
The volume of work required to assess an FOI request was invariably over-used, as an excuse, for refusing access, and therefore, must be closely monitored.
In response to an FOI request, a SIA lawyer wrote that “We can neither confirm nor deny” that the document exists. This incomprehensible SIA response was made after I had quoted verbatim from the Eagle Analytical Services letter under question, thus proving that the document existed. Yet, ASADA would not confirm it existed.
Reasons for time extensions should be tight. “We can’t find the password” and “two staff are on holidays” are not acceptable. A retired school teacher threw in the towel in frustration at this response from ASADA to FOI 19:22.
In one request, on 24 July 2019, I sought a form document that contained nothing but a tick in a box labelled “I agree” or “I disagree”. I received it on 30 August 2023.
ASADA eventually responded to my subsequent FOI request as follows: “There is no such text”, which confirmed Mr McDevitt had misled parliament. Apparently, Mr McDevitt submitted a 65-page defence to the committee. Inexplicably, the Senate committee led by Senator Duniam falsely ruled in Mr McDevitt’s favour. My request to see Mr McDevitt’s response was refused. Clearly, the Senate committee was either inept or covered-up Mr McDevitt’s untruthful comments.
If an FOI request involves more than one document, within reason, each document should be assessed on its own merit, and if it meets the criteria, released immediately. The applicant should not have to wait more than 12 months before both documents are assessed.
When multiple documents are requested, ASADA invariably responds that “the work involved in processing your request in its current form would substantially and unreasonably divert the resources of agency from its other operations due to its size”.
Essendon Player Nathan Lovett-Murray gave ASADA permission to release his ASADA interview transcript to me (FOI 18:27). As FOI 18:27 also involved a request for a second document, ASADA withheld the Lovett-Murray document for over a year.
Essendon AFL Drug Saga 